ORDER
R.L. Anand, J.
1. Sarvshri Ram Chand, Bhushan and Sham Lal have filed the present petition under Section 482, Cr.P.C., read with Article 227 of the Constitution of India, for the quashment of the complaint under Sections 364/302/384/387 201/120-B read with Section 34, Indian Penal Code, and the order dated 25-3-1996 passed by the Additional Sessions Judge, Ferozepur. Framing charge against the petitioners for the offences under Sections 364/302/201 read with Section 34, Indian Penal Code, as well as all the consequential proceeding arising therefrom.
2. The case set up by the petitioners is that they have been falsely implicated in the above mentioned complaint at the instance of respondent No. 2 Smt. Shanti, whose motive is to involve the petitioners by one way or the other in order to lower their image in the public and to harass them due to personal enmity. A totally false and concocted complaint has been filed against the petitioners. The son of respondent No. 2 died on 6-9-1991 due to drowning and the post-mortem was performed in Civil Hospital, Abohar on 7-9-1991 and the cause of death was recorded “due to drowning” as per the post-mortem report (Annexure P1). On 6-9-1991 the Rapat Roznamcha was entered at the instance of the husband of respondent No. 2 Shri Lekh Ram in Police Station City, Abohar. When the dead body of the son of respondent No. 2 was found, the statement was recorded under Section 174, Cr. P.C. in that statement the husband of respondent No. 2 Shri Lekh Ram did not express any foul play in the death of his son, nor he expressed any suspicion against any person. Rather he stated that he did not want to take any action against any person. It is alleged by the petitioners that petitioner No. 1 Ram Chand is doing the business near the shop of Shri Lekh Ram. Initially they were having cordial relations with each other and later on their relations became strained. Shri Lekh Ram at the instance of some bad elements wanted to abduct petitioner No. 1 with the intention to kill him. As a result thereof, complaint under Sections 364, 365, 323, 506, 504, 148, 149, I.P.C., was filed by petitioner No. 1 against Shri Lekh Ram, his wife and others on 21-7-1994 (Annexure P3). On the basis of this complaint the learned Judicial Magistrate 1st Class, Abohar, summoned Smt. Shanti along with her husband on 7-10-1995 under Sections 365, 323 etc., I.P.C., and the said complaint is still pending in the Court of Judicial Magistrate 1st Class, Abohar. Against this summoning order dated 7-10-1995, petitioner No. 1 filed a revision petition, praying that respondent No. 2 should also be summoned under Section 364, I.P.C. Said revision petition is still pending in the Court of Additional Sessions Judge, Ferozpur. As a counter-blast, the respondent’s brother-in-law Shri Mulla Ram lodged a false F.I.R. No. 523 of 1994 under Sections 364/366, I.P.C., in Police Station, Ganga Nagar, against the petitioners, and the allegations of that F.I.R. are that the petitioners wanted to abduct the other son of respondent Smt. Shanti Devi with an intention to kill him. The petitioners were asked to appear during investigation, but no offence was allegedly committed by the petitioners and they were discharged vide order dated 6th January, 1995. Later on respondent No. 2 filed certain complaint before the S.P. Abohar, alleging that the petitioners had killed her son. No substance was found in the enquiry conducted by the S.P. and the said complaint was filed. This complaint was filed by respondent No. 2 in order to lower the petitioners in the public due to personal grudges. Thereafter the petitioners filed a complaint against respondent No. 2 and her husband Shri Lekh Ram under Sections 500/182, IPC, in the Court of Chief Judicial Magistrate, Abohar, on 6-10-1994. In that complaint respondent No. 2 Smt. Shanti and her husband Shri Lekh Ram were summoned. As a counterblast, respondent No. 2 filed the present complaint in the Court of Judicial Magistrate 1 st Class, Abohar, under Sections 364/302/384/387/201/120-B read with Section 34, Indian Penal Code. In this complaint again a version has been made that the petitioners have killed her son. The respondent wrongly stated that no post-mortem examination was conducted. In fact, the postmortem was conducted on 7-9-1991 and the cause of death was given “due to drowning”. The respondent Smt. Shanti Devi has not even made a mention of the proceedings under Section 174, Cr.P.C., in the complaint. On the basis of the said complaint, Judicial Magistrate 1 st Class, Abohar, summoned all the petitioners under Sections 302/201/120-B/34, Indian Penal Code, vide order dated 24-11-1995 (Annexure P7).
3. It is alleged by the petitioners that with the reading of the complaint filed by the respondent, no offence is made out. The complaint is a bundle of lies. The occurrence, according to the complainant, took place on 6-9-1991. The postmortem was conducted on 7-9-1991. In the proceedings under Section 174, Cr. P.C., it had been specifically stated by the father of the deceased that he did not want to take any action against any one and that it was a case of accidental death. The complaint had been filed after a lapse of 3 years and 4 months i.e. on 2-1-1995, and there is no explanation of this delay. The entire version given in the complaint is an afterthought and is clearly an abuse of the process of law. The right of speedy justice of the petitioner has been violated. All the allegations made in the complaint were very much in the knowledge of respondent No. 2, but no complaint was filed within a reasonable time. The petitioners were granted anticipatory bail. They were discharged in those cases where they were summoned by the Court of Additional Chief Judicial Magistrate, Ganganagar. The petitioners have also filed number of complaints against the respondent in which respondent No. 2 has been summoned and now as a counterblast the present complaint has been filed on 2-1-1995, which is liable to be quashed. The learned Magistrate wrongly summoned the petitioners. The case was committed to the Court of Session. It was marked to the Additional Sessions Judge, Ferozepur, who erroneously framed the charge against the petitioners under Sections 302/201/120-B/34, I.P.C. The charges have been framed by passing a non-speaking order. The learned Additional Sessions Judge did not go into the material placed on the record. He did not apply his judicial mind, nor he considered broad probabilities of the case. He acted in a mechanical manner as a mouthpiece of the prosecution. It was his duty to separate the grain from the chaff.
4. With the above allegations, the petitioners have prayed for the quashment of the complaint (P6), the summoning order (P8) and the order framing the charge (P9).
5. Notice of this petition was given to the respondents. Shri G.S. Gill, Assistant Advocate General, Punjab, appeared on behalf of respondent No. 1, and Shri J.S. Thind, Advocate, appeared on behalf of respondent No. 2, and with their assistance I am disposing of the present petition.
6. Before I deal with the submissions raised by the learned counsel for the parties, it will be useful for me to first incorporate the order dated 25th March, 1996 (Annexure P9) itself, vide which the present petitioners were charge-sheeted for the offences under Sections 364/302/210/34, I.P.C., which is in the following terms :-
Present:- Addl. PP for the State.
. . .
All the accused on bail with Sh. R.M. Maini.
Heard. A prima facie case for an offence punishable under Sections 364/302/201/24 IPC 1997CR1.L. J./211 IX is made out against the accused. They be charged accordingly.
Charge framed; read over and explained to the accused to which they plead not guilty and claim trial. Prosecution evidence be summoned for 7-10-1996.
Sd/-
(L.R. Roozam)
Dated 25-3-1996. Addl. Sessions
Judge, Ferozepur,
7. In this case the petitioners have already been summoned by the Magistrate. They have also been committed to the Court of Session and in these circumstances it will not be appropriate for me to quash the complaint as well as the summoning order and the commitment order because much water has already been flown over the bridge. Firstly, the powers have been invoked by the learned Commitment Magistrate under Section 204, Cr.P.C., holding that there are sufficient grounds for proceeding against the accused. Again the learned Magistrate has formulated an opinion under Section 209, Cr. P.C., that the accused appeared to have committed the offence triable exclusively by the Court of Session and it may also be stated here that the learned counsel appearing for the petitioners, Shri Ravinder Chopra, has also not attacked the orders, ordering summoning of the petitioners as accused as well as their commitment. His grouse is confined only to the order dated 25-3-1996 passed by the Court of Additional Sessions Judge, Ferozepur, framing the charge against the petitioners under the various offences referred to above and to the issuance of formal charge-sheet. Unfolding his submission, learned counsel for the petitioners Shri Ravinder Chopra submitted that it was obligatory on the part of Court of Session to comply with the provisions of Sections 226, 227 and 228 of the Code of Criminal Procedure, and that the impugned order framing the charge has been passed in a mechanical manner without application of mind and also that the learned Additional Sessions Judge did not take into consideration the fact that in the proceedings under Section 164, Cr. P.C., the husband of respondent No. 2 categorically stated that he did not find any foul smell in the death of his son and that the petitioners were earlier subjected to harassment and botheration when they were summoned as accused by the respondent and by her relations; so much so, the present complaint has been lodged after a delay of three years and four months, i.e., on 1-2-1995, when the alleged offence has been committed on 6-9-1991. The learned Additional Sessions Judge also did not take note of the fact that there is an inordinate and unexplained delay of 3 years and 4 months, becoming fatal to the case, and, therefore, the order passed by the learned Additional Sessions Judge cannot stand in the eyes of law. In support of his contention, learned counsel for the petitioners has invited my attention to the case law reported as Satish Mehra v. Delhi Administration (1996) 7 JT (SC) 6 wherein the scope of the provisions of Sections 226, 227, 228 and 239 has been considered, and it has been held that at the stage of framing of the charge, the Sessions Judge has the power to look into any material other than the materials produced by the prosecution. It will be useful for me to incorporate the relevant portion of the judgment as follows :-
Section 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilty of the accused would be proved. The next provision enjoins on the Sessions Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions? Should it be confined to hearing oral arguments alone ?
Similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the pol ice report and the documents sent therewith. At these two stages the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the “ground” may be any valid ground including insufficiency of evidence to prove charge.
The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code.
But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of workload. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or nip the proceedings at the stage of Section 227 of the Code itself.
The learned counsel in order to supplement his arguments, relied upon Manphool v. State of Haryana (1992) 2 CLR 253, wherein it was held that the Court has to apply its mind and consider broad probabilities of the case, cumulative effect of the evidence and documents produced before itself and any basic infirmities appearing in the case and cannot act mechanically as a mouth piece of the prosecution. The attention of this Court was also invited to Ajay Malik v. State (1996) 2 Chand LR (Cri) 40 a judgment of the Delhi High Court where it was held that the charge cannot be framed at the mere asking of the prosecution and that it is not an empty formality and that the trial Court is under obligation to give reasons in support of its framing the charge.
8. Attention of this Court has also been invited to State of Karnataka v. L. Muniswamy AIR 1977SC 1489: 1977 Cri LJ 1125; State of Bihar v. Ramesh Singh AIR 1977 SC 2018 : 1977 Cri LJ 1608; Union of India v. Prafulla Kumar Samal AIR 1979 SC 366 : 1979 Cri LJ 154; and Kamru v. State of Haryana (1994) 3 Rec Cri R 349 (Punj & Hry) wherein it was held that it is incumbent upon the Court to consider the whole question judicially and it is not expected to act in a mechanical manner. The attention of this Court has further been invited to Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja (1991) 1 Rec Cri R 89 : 1990 Cri LJ 1869 (SC); Kamrudeen v. State of Haryana (1991) 1 CLR 305; wherein it has been held that the stage of framing of the charge is an important stage in a criminal trial and the Court has to apply its judicial mind to facts of the case as disclosed from report under Section 173, Cr. P.C., and the statements of witnesses recorded during investigation in order to arrive at a prima facie opinion regarding the nature of offence made out against the accused.
9. On the contrary, it was submitted by the learned counsel appearing on behalf of the respondents that the impugned order of the learned Magistrate has been passed with full responsibility on his part and he has applied his mind and the said order has been passed in conformity with the provisions of Sections 226, 227 and 228 of the Code of Criminal Procedure, and at that stage of the case the learned trial Court was not bound to write a detailed order. If after application of mind he had chosen to frame the charge, this Court should presume it that he had complied with the provisions of Sections 226, 227 and 228 of the Code of Criminal Procedure, and this Court should not draw an inference on its part that there is non-application of the judicial mind on the part of the learned trial Court. In this regard it will be useful for me to deal with the provisions of Sections 226, 227 and 228 of the Cr. P.C. According to Section 226, when the accused appears or is brought before th Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Under Section 227 of Sessions Court is supposed to consider the record of the case and to the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, if the Sessions Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. A close reading of Section 227, Cr. P.C., would show that the Court of Session is obliged to consider the record of the case and the documents submitted along with the record and it has to hear the submissions of the parties and then to decide whether there is sufficient ground for the discharge or not. The Court of Session is supposed to record the reasons if it does not choose to discharge the accused under Section 227 and wanted to proceed under Section 228 of the Cr. P.C. After such consideration and at this juncture the Court of Session is supposed to formulate an opinion that there is ground for presuming that the accused committed an offence. In other words, only prima faice case is to be seen. The evidence is not to be adjudged nor a lengthy roaming inquiry is to be made by the Court of Session. Otherwise, if at this juncture the Court of Session records any findings or discusses any evidence, either of the parties, whether the prosecution or the accused, would say that the Judge had already decided the controversy at the charge stage itself, leaving no scope of conviction or acquittal for the prosecution and the accused. At this juncture, while applying his mind, it is expected from a trial Court not to enter into a detailed discussion but confine its inquiry limited to the extent whether there is ground for presuming that the accused had committed the offence or not. This is the real import of the law as I understand from the combined reading of the provisions of Sections 227/228 of the Code of Criminal Procedure. In this regard I would like to quote with approval the observations of the Hon’ble Supreme Court contained in State of Bihar v. Ramesh Singh (1977 Cri LJ 1606) (supra), wherein it has been held as follows:-
Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before feeording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.
The Hon’ble Supreme Court has even gone to the extent that at the stage of the trial if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. Therefore, the Court of Session at this stage need not undertake an elaborate inquiry in chaffing and weighing the material nor it is necessary to delve deep into the various aspects.
10. Reverting to the facts in hand, it has been stated by Smt. Shanti, respondent No. 2, that in the month of September 1991 her son Ramesh Kumar was a student of 8th Standard. He returned to home from the school. He placed his school bag in the home and changed the clothes. Thereafter, Bhushan, accused No. 2, had taken Ramesh Kumar on his scooter on some pretext. However, she came to know that Bhagirath and Chand Ram had seen the accused Bhushan taking Ramesh Kumar on his scooter and that the deceased was seen talking with accused Ram Chand. Ramesh Kumardid not return to his home in the evening. Search was made in the city. Proclamation was also made, but the whereabouts of Ramesh Kumar were not known. It has also been stated by respondent No. 2 Smt. Shanti that Ram Chand petitioner, who had ill motive under the garb of good relations with her family, got lodged report with the Police regarding the disappearance of Ramesh Kumar in such a manner so as not to create any doubt. It was all a false exercise. The dead body of her son was recovered from the canal. A false sympathy was extended by the accused party. After the death of Ramesh Kumar, one paper was found in the shop of the complainant and she came to know that some unknown persons had demanded Rs. 3 lacs, otherwise her second son would be killed. After reading this letter some suspicion arose in her mind that Ram Chand had killed her son. She even sent letters to the higher authorities. After the death of her son Ramesh Kumar, the complainant sent her other son Rajinder Kumar with her brother Mula Ram due to the nonpayment of the ransom of Rs. 3 lacs. On 25-9-1994 Ram Chand tried to abduct her son Rajinder Kumar with the motive to kill him. It has been specifically stated in para No. 9 of the complaint that all the accused were found drinking in a hotel near the Bus Stand and they were heard talking to each otherthat they had murdered Ramesh Kumar and did not leave any clue and now if the amount of Rs. 3 lacs was not paid to them, they would kill Rajinder Kumar and this part of the incident was seen by Rajinder son of Murari Lai and Mani Ram son of Sahi Ram. Later on she wrote letters on 16-11-1994 to the higher authorities. The accused party came to know about this letter and they confessed before Charan Dass and others that the complainant and her husband were trying to find out the clues regarding the death of Ramesh Kumar. Even though they had killed him, but no harm was done to them and in future also no harm was going to be caused to them. The aforesaid witnesses reported this matter to the complainant. Also there are allegations in para No. I I of the complaint, the pointer of which is against the accused-petitioners. A reading of the complaint would show that it cannot be said that it is a case of no evidence or that the allegations are totally absurd, so that these should not be investigated by the criminal Courts in order to save their times, as held by the Hon’ble Supreme Court in Satish Mehra v. Delhi Administration (1996 (7) JT (SC) 6) (supra). Even if there are some allegations, which require some adjudication, the Court of Session under Sections 227 and 228 is bound to frame the charge.
11. Now it is to be seen whether in the present case the charge has been framed in a mechanical manner or that there is an application of mind on the part of the trial court. It has been categorically stated in the order that parties of the case were heard. Again the Court stated in the order that prima facie case for the offence punishable under Sections 364/302/210/34, I.P.C., is made out against the accused. This shows an application of mind in terms of Section 228 of the Code of Criminal Procedure. Detailed order was not supposed to be written. This Court is not in agreement with the argument raised by the learned counsel for the petitioners that the Court below failed lo discharge its solemn duty in framing the charge. There is no quarrel about the proposition of law that framing of charge is not an idle fromality. hut an act of judicial application of mind. Once those factors have been taken note of, this Court cannot jump to the conclusion straightway that since the order is not elaborate, therefore, it has to be inferred that there was non-application of mind on the part of the trial Court. This Court will also infer that all the possible pleas, which were advanced before the learned trial Court at that stage of the trial, were duly considered and noticed and thereafter a decision was taken for the framing of the charge. A combined reading of Sections 227 and 228 of the Code of Criminal Procedure only requires that there should be finding with regard to prima facie case, which is evident from the impugned order itself. I have stated above that sufficiency of evidence resulting into conviction, is not to be seen because that will be seen by the trial Court when it will enter into the provisions of Sections 232, 234 and 235 of the Code of Criminal Procedure. At this juncture this Court is to see whether the charge should be quashed in the proceedings under Section 482. Cr. P.C., when the petitioners have not taken the trouble to challenge the charge on the revisional side. This Court while invoking the powers under Section 482, Cr. P.C., cannot enter into sufficiency of evidence, but certainly would like to ascertain, while remaining it self in a limited sphere, whether the complaint filed by the complainant was a sheer abuse of the process of law. Admitteldy,thc son of the complainant had died in unnatural circumstances. Whether it was a case of accidental death or it was a systematic act, is to be seen by the trial Court itself and this role cannot be assigned to or assumed by the High Court in the jurisdiction under Section 482, Cr. P.C. The delay in filing a criminal complaint, whether false or otherwise, is again to be adjudged by the trial Court because the law of the land is that the delay per sc is not fatal in the criminal cases. It has to be adjudged on the facts of each case, looking into the conduct of a particular complainant. The case law relied upon by the learned counsel for the petitioners is not helpful to him. Rather the guidelines of the Hon’ble Supreme Court, to my mind, arc against the petitioners, when this Court remarks that sufficiency of the evidence is not to be seen by the Courts while framing of charges. This Court is of the considered opinion that there is hardly any merit in the present petition, which is hereby dismissed.
12. Before parting with this order, I would like to make it very clear that the observations recorded above, would be only relevant and construed to a limited question whether the charges framed against the petitioners can be quashed in the proceedings under Section 482, Cr. P.C. or not. My opinion shall not have any bearing on the merits of the trial.